UNITED STATES OF AMERICA, ET AL., PETITIONERS V. JAMES B. STANLEY
No. 86-393
In the Supreme Court of the United States
October Term, 1986
On Writ Of Certiorari To The United States Court Of Appeals For The
Eleventh Circuit
Reply Memorandum For The United States
In our opening brief, we argued that the court of appeals lacked
jurisdiction to reconsider the dismissal of respondent's FTCA claims.
/1/ We also argued that, in any event, respectively, by Feres v.
United States, 340 U.S. 135 (1950), and Chappell v. Wallace, 462 U.S.
296 (1983). The Court plainly held in Feres, as a matter of statutory
interpretation, that the FTCA did not waive sovereign immunity for
actions based on injuries incurred by a service member incident to
military service. In Chappell, the Court, looking in part to the
reasoning underlying Feres, concluded that it would be inappropriate
to recognize a Bivens remedy for military personnel against their
military superiors.
1. Notwithstanding his own prior statements to the contrary and the
Fifth Circuit's 1981 conclusion to the contrary, respondent now argues
that his participation in the Army's chemical warfare tests in 1958
was not incident to military service. In part he is arguing for a
revision of the Feres standard that would really eliminate the
incident to service test by assigning it a new meaning looking to the
effect of litigation on military discipline. That argument is fully
discussed in our opening brief (at 16-20). Also, however, he appears
to be making a factual argument that the Army's LSD testing program
was not, in fact, a military activity. That factual argument is
without merit.
The Army administered LSD to a number of service members in the
1950s, in response to reports that the Soviet Union had purchased a
large quantity of LSD, in order to test its effects on soldiers. S.
Rep. 94-755, 94th Cong., 2d Sess. 411-412 (1976). /2/ In concluding
that the administration of LSD to respondent at the Army's Chemical
Warfare Laboratories in Maryland in February of 1958 was incident to
his military service, the Fifth Circuit in 1981 stated: "At the time
Stanley was given LSD, he was a Master Sergeant in the Army who had
volunteered to participate in an experimental program in lieu of his
regular duties. The experiment was conducted on an Army base by and
for the benefit of the Army. Thus the relationship between Stanley
and the allegedly negligent individuals stemmed from their official
military relationship." Pet. App. 76a. The Fifth Circuit rejected
respondent's argument that he was not acting incident to service
because he had volunteered to take part in the program, and held that
his FTCA claim must be dismissed, noting: "Stanley was receiving
military pay and was promised a letter of commendation for his
participation in the program. Clearly his participation in the
program was activity incident to his military service." Id. at 77a.
In reviving respondent's FTCA claim sua sponte, the Eleventh
Circuit did not disagree with the Fifth Circuit's conclusion that
respondent was given LSD incident to military service. It instead
concluded that "(t)oday, in the Eleventh Circuit, controlling
precedent does not automatically or mechanically preclude Stanley's
lawsuit under the FTCA or Bivens upon a finding that he suffered the
complained of injury while performing duties incident to military
activities" (Pet. App. 19a). It thus found -- erroneously, we submit
-- that the occurrence of injuries incident to service is not a
sufficient predicate for the denial of FTCA liability.
Furthermore, respondent's Second Amended Complaint (which does not
include an FTCA claim) alleges that the defendants were acting "under
color of a covert federal Army pro(gram)" (J.A. 7, Paragraph 14). /3/
Respondent now claims that that statement does not mean what it
appears to mean -- that he was injured incident to service -- but only
means that the defendants "were acting under the color of what was
supposed to be an army program to test gas masks and protective
clothing" (Br. 10). That is belied by the concluding statement in the
same paragraph of the complaint, which alleges that he was deprived of
his rights pursuant to "official policy" (J.A. 7, Paragraph 14).
Thus, it appears that even respondent essentially conceded that he was
acting incident to military service when he was administered LSD, and
presumably for that reason he abandoned his allegation that the
government is subject to suit under the FTCA.
In addition, it is clear beyond dispute that the program in
question was an official Army program. It was developed and conducted
by the Army program. It was developed and conducted by the Army
Intelligence Board and the directors of the Army's Chemical Warfare
Laboratories (S. Rep. 94-755, supra, at 411) "by and for the benefit
of the Army" (Pet. App. 76a). Respondent challenges the latter
finding (Br. 28). In contending that the testing was not the sort of
activity usually associated with the military, respondent ignores the
existence of intelligence information indicating that the Soviet Union
had purchased a large quantity of LSD, possibly for use as a weapon.
S. Rep. 94-755, supra, at 411 n.100. The military frequently conducts
weapons tests, including chemical weapons tests; it Chemical Warfare
Laboratories were established for that purpose.
Contrary to respondent's suggestions (Br. 7-10, 25 n.14), the
program was not operated by the Central Intelligence Agency (CIA),
with the Army playing only a minor role. In fact, the Senate Report
criticized the Army for its failure to coordinate its activities with
the CIA, which also carried our LSD testing in the 1950s (S. Rep.
94-755, supra, at 413-414). Moreover, the Senate Hearings relied upon
by respondent show that the CIA was not involved in the program under
which he was administered LSD. Respondent cites (Br. 8) a Defense
Department memorandum, reprinted with the hearings, ostensibly to
indicate that the Army and the CIA cooperated in conducting drug
testing. The cited memorandum makes clear, however, that the three
programs in which the Army and the CIA cooperated were conducted
between 1969 and 1973, not in 1958. Human Drug Testing by the CIA:
Hearings on S. 1893 Before the Subcomm. on Health and Scientific
Research of the Senate Comm. on Human Resources, 95th Cong., 1st Sess.
157 (1977) (hereinafter 1977 Hearings). Respondent also notes (Br. 9)
that the CIA and the Army conducted some joint drug research at the
Army's Chemical Warfare Laboratories, which is where he was given LSD.
It is clear from the portion of the hearings cited by respondent,
however, that the CIA was involved in drug testing there only after
1971 (1977 Hearings 153). /4/
2. Respondent also argues (Br. 25) that because the Army's
Inspector General issued a report criticizing aspects of the Army's
LSD testing program, proceedings in this case would not conflict with
the interests underlying the Feres doctrine. The Inspector General
did in fact issue a report (which is not a public document and is not
in the record) that was critical of the program in many respects, as
was the Senate Report. It does not follow from the existence of such
a report, however, that Feres' interpretation of the FTCA, and
Chappell's application of Feres' reasoning in the context of Bivens
actions, are rendered irrelevant. Such a conclusion would penalize
the government for studying past errors in order to prevent their
recurrence. The injuries alleged here remain injuries incurred
incident to military service, as to which the FTCA created no remedy,
and the adverse impact of allowing damage actions against military
personnel seeking redress for such injuries remains substantial, as
this Court recognized in Chappell. /5/
Contrary to respondent (Br. 22-26), the political branches of
government, not the judiciary, are responsible for control of the
military. The courts are not to "second-guess military decisions"
(United States v. Shearer, No. 84-194 (June 27, 1985), slip op. 5),
and a trial in this case would clearly require review of the Army's
LSD drug testing program by the judiciary. /6/ Because respondent was
administered LSD incident to military service -- indeed, pursuant to
an official Army chemical warfare testing program -- his claims are
barred.
For the foregoing reasons and the additional reasons stated in our
opening brief, it is respectfully submitted that the decision of the
court of appeals should be reversed.
CHARLES FRIED
Solicitor General
APRIL 1987
/1/ Respondent contends (Br. 15-16) that the judgment order
dismissing the FTCA claim (Pet. App. 54a-55a) was not entered in
accordance with Fed. R. Civ. P. 58, so that he is not barred from
appealing the dismissal of his FTCA claim. There is no merit to the
argument. As we explained in our opening brief (at 11-13), the
judgment order is a separate document that fully complied with the
requirements of Rule 58. Moreover, as we explained in our reply
memorandum in support of our petition for a writ of certiorari (at 1-2
& n.1), the requirements of Rule 58 are expressly "(s)ubject to the
provisions of Rule 54(b)," so a partial final judgment that complies
with the requirements of Rule 54(b) starts the time for filing a
notice of appeal running whether or not the judgment complies with the
requirements of Rule 58.
/2/ Respondent complains (Br. 6-7) that the Senate Report
concerning the Army program is not in the record. We know of no rule
requiring the entry of congressional reports, which are available at
law libraries throughout the country, into the record before they may
be cited. Moreover, the findings of a Senate Select Committee are
within judicial notice. See 9 C. Wright & A. Miller, Federal Practice
and Procedure: Civil Section 2410, at 338-361 (1971). In this case,
where the alternative to taking judicial notice of the Senate's
findings is to have respondent independently inquire into the Army's
LSD testing program through this lawsuit, judicial notice is plainly
warranted, since oversight of the military is committed to the
political branches. See, e.g., United States v. Shearer, No. 84-194
(June 27, 1985), slip op. 5-6.
/3/ Respondent's Second Amended Complaint (J.A. 3-10) contains
counts alleging a Bivens action, an action under 42 U.S.C. 1983, and
an action under 42 U.S.C. 1985. The complaint was filed four months
before this Court held in Chappell v. Wallace, 462 U.S. 296 (1983),
that the concerns underlying the Feres doctrine are a special factor
counseling against the recognition of the right of service members to
pursue Bivens actions.
/4/ Even if the Army had carried out its LSD testing program in
conjunction with the CIA, that would not affect the conclusion that
respondent's claims are barred. As we explained in our brief in
United States v. Johnson, No. 85-2039 (argued Feb. 24, 1987), the
military frequently acts with and through civilian agencies. Service
members are barred by Feres from bringing tort claims against the
government if they suffered injury incident to military service, even
if they allege that their injury was caused by the negligence of a
civilian, because claims based on injuries incurred incident to
military service are "the type of claims that, if generally permitted,
would involve the judiciary in sensitive military affairs at the
expense of military discipline and effectiveness" (Shearer, slip op.
6-7). Under Chappell, service members should also be barred from
pursuing Bivens actions in such circumstances, since the purposes
underlying the Feres doctrine are a special factor counseling against
the recognition of a Bivens action.
/5/ In connection with the application of Chappell in the present
context, respondent complains that we failed to specify what
particular regulation under the Veterans' Benefits Act compensates for
the injuries he alleges he suffered (Br. 36). He contends that he has
suffered "severe and permanent * * * mental and psychological
injuries" (J.A. 8 Paragraph 18); the regulations providing for
benefits for "mental disorders" incurred incident to military service
are found at 38 C.F.R. 4.125 et seq. Respondent also alleges that he
should be compensated for the breakdown of his marriage (J.A. 8,
Paragraph 18), and contends that this case is distinguishable from
Chappell because the alternative remedy provided by Congress is not a
complete remedy (Br. 39). While the Veterans Benefits Act probably
does not authorize all of the relief that respondent might desire
(although it does authorize recovery for "social and industrial
adaptability" (see 38 C.F.R. 4.132; emphasis added)), that does not
mean that the Act is not congressional activity in the field.
/6/ The Senate Report criticized the consent form used by the Army
(S. Rep. 94-755, supra, at 417) and also criticized the Army's failure
to conduct long-term follow-up studies on the participants in the LSD
testing program (id. at 418). While the Senate Report thus found
fault with aspects of the Army's LSD testing program, it of course did
not evaluate the program from a legal perspective to determine whether
the program as conducted violated the rights of the participants.
That issue would be the focus of a trial in this case, requiring
further inquiry into the Army's LSD testing program.